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2023 DIGILAW 443 (CHH)

Satish Kumar Singroul, S/o. Shri Baldau Prasad Singroul v. Sangeeta Kashyap, W/o. Shri Ashwani Kashyap

2023-08-29

GOUTAM BHADURI, SANJAY S.AGRAWAL

body2023
JUDGMENT : Goutam Bhaduri, J. 1. Challenge in this appeal is to the judgment and decree dated 21-9-2021 passed by the First Additional District Judge, Mungeli, District Mungeli, in civil suit No.23-A/2018 whereby the suit filed by the plaintiffs/appellants, who were three in numbers, was dismissed. 2. Admitted facts are that on 25-1-2017 defendant No.1 Smt. Sangeeta Kashyap, purchased the property from the defendant No.4 Baldau Prasad Singroul, who is the father of the plaintiffs. Subsequently, another sale deed was executed in favour of the defendants No.2 & 3 namely; Ramanuj Singroul & Geetaram Singroul, respectively. The suit property is comprised of khasra No.119/1 admeasuring 1.83 acres and khasra No.118/2 admeasuring 0.95 acres, total area comprised of 2.78 acres. Subsequent to their purchase, the names of defendants No.2 & 3 were recorded in the revenue records. The plaintiffs filed the suit on the ground that the property in question, which was initially sold by the defendant No.4 in favour of the defendant No.1, he could not have sold the lands, being a co-parcenary property and the plaintiffs being the co-parcerners have vested interest in it. 3. The defendant No.1 resisted the suit on the ground that the purchase, which was initially made by her on 25-1-2017 was valid and the sale deed was properly executed. The defendant No.4, father of the plaintiffs, being the karta was entitled to execute the sale deed, which was for the legal necessity. Subsequently, the sale deed was executed on 25-4-2018 in favour of the defendants No.2 & 3 by two subsequent sale deeds. It was further stated that in order to annul the sale on false and fabricated grounds the plaintiffs, who were the son & daughters of the defendant No.4, the seller, with a collusion, the suit was filed and dismissal of the suit was prayed for. 4. The defendant No.4 stated that he obtained a loan of Rs. 6.00 lacs from the husband of the defendant No.1 namely; Ashwani Kashyap and an agreement was executed by exerting pressure and the sale deed was subsequently got executed, therefore, execution of sale deed was under coercion and pressure not for any legal necessity. 5. 4. The defendant No.4 stated that he obtained a loan of Rs. 6.00 lacs from the husband of the defendant No.1 namely; Ashwani Kashyap and an agreement was executed by exerting pressure and the sale deed was subsequently got executed, therefore, execution of sale deed was under coercion and pressure not for any legal necessity. 5. On the basis of pleadings, the learned Additional District Judge framed 11 issues and held that the suit property was a co-parcenary property and the suit has been filed by the plaintiffs in collusion with the defendant No.4 (seller) and dismissed the suit. Hence, this appeal by the plaintiffs. 6. (i) Learned counsel appearing for the appellants/plaintiffs would submit that the finding on the issue that the suit property was a co-parcenary property is not under challenge, therefore, that issue of finding of co-parcenary property has attained the finality. He would further submit that the defendant No.4, who had initially executed the sale deed on 25-1-2017 in favour of the defendant No.1, the plaintiffs being the other co-parceners, could not have been sold the entire property alone by the defendant No.4. He would also submit that perusal of the sale deed would show that it was not for any legal necessity, therefore, the sale deed could not have been executed. In support of his contention, learned counsel would place reliance upon the decision rendered by this Court in the matter of Vaman Sharma & Others v. Smt. Namita Baidhmutha & Others, 2023 (3) CGLJ 114 (DB) to submit that no legal necessity existed. He also placed reliance upon the decision rendered by this Court in the matter of Chameli Kaushik & Others v. Koushilya Bai Patel & Others, 2023 (2) CGLJ 264 to submit that by sale of one of the co-parcener, the vendee cannot be put to a particular possession. 6 (ii) Learned counsel went through the statements of the plaintiffs and the defendant to submit that legal necessity has not been proved and further referring to the statement of Ashwani Kashyap (DW-4), husband of the defendant No.1, he would submit that the defendant No.1 was not examined before the Court instead her husband Ashwani Kashyap was examined and as per the statement the things which were in personal knowledge of the defendant No.1 could not have been deposed by her power of attorney holder. To buttress his contention, learned counsel would place reliance upon the decision of the Supreme Court rendered in the matter of Janki Vashdeo Bhojwani & Another v. Indusind Bank Ltd. & Others, AIR 2005 SC 439 . He would submit that the appeal may be allowed by setting aside the impugned judgment and decree. 7. Learned senior counsel appearing for the respondents/defendants No.1 to 3, per contra, would submit that there is no absolute bar in execution of the sale deed by the karta of the family in respect of the share of other co-parceners. He would further submit that the recital of the sale deed would show the legal necessity was tried to be projected in the sale deed that it was for the agricultural purpose, which would lead an inference that the agriculture activity would be for the entire family. Referring to the statement of the plaintiff, learned counsel would submit that the plaintiff also admit that it was for the legal necessity. With respect to the sale of property of minor, learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of Sri Narayan Bal and Others v. Sridhar Sutar and Others, (1996) 8 SCC 54 to submit that the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956 (for short ‘the Act, 1956’) would not be solely attracted as the same has to be conjointly read with Sections 6 & 12 of the Act, 1956. He would next submit that when the beneficial legislation is the object for the benefit of minor then in such case merely not obtaining permission would not ipso facto would defeat the sale. Learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of Beereddy Dasaratharami Reddy v V. Manjunath and Another, 2021 SCC OnLine SC 1236 to submit that the Supreme Court has explained the legal necessity and reading of the provision would show the existence of legal necessity for execution of the sale deed. He would lastly submit that the impugned judgment and decree is well merited warranting no interference of this Court. 8. We have heard learned counsel appearing for the parties at length and perused the record. 9. He would lastly submit that the impugned judgment and decree is well merited warranting no interference of this Court. 8. We have heard learned counsel appearing for the parties at length and perused the record. 9. In order to ascertain the fact the genealogical tree of the plaintiffs and the defendant No.4 is shown here under : Jiwrakhan S/o Baisakhu (Exibit P-1) Mathura Prasad Partition Balmukund Baldau (Defendant No. - 4) Markandey Satish Kumar (Plaintiff - 1) Smt. Khuleshwari (Plaintiff - 2) Ku. Kalash (Plaintiff – 3) Minor 10. Admittedly, as has been held by the learned trial Court, the property in question bearing khasra No.118/2 & 119/1 were the co-parcenary property, which the defendant No.4 got it from his predecessor in title. 11. With amendment of Section 6 w.e.f. 9-9-2005 of the Hindu Succession Act, 1956 (for short ‘the Succession Act’) the property would also devolve on to the daughter being the co-parcener, therefore, the plaintiffs in the instant case undoubtedly would be co-parceners i.e. son & daughters. 12. Mitakshara co-percenary carries a definite conception. It is a body of individuals having been created by law unlike a joint family which can be constituted by agreement of parties. A Mitakshara co-parcenary is a creature of law. 13. The Supreme Court in case of Hardeo Rai v. Sakuntala Devi and others, (2008) 7 SCC 46 at para 19 has reiterated the principles laid down at para 5 in S.B.I. v. Ghamandi Ram, (1969) 2 SCC 33 which reads as under : 5. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Chapter I, pp.1-27). The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Chapter I, pp.1-27). The incidents of coparcenership under the Mitakshara law are: firstly; the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly; that such descendants can at any time work out their rights by asking for partition; thirdly; that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly; that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly; that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners; and sixthly; that the interest of a deceased member lapses on his death to the survivors. A co-parcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a co-parcener with his adoptive father as regards the ancestral properties of the latter." 14. There is no challenge to the cross objection to the fact that the property in question was the co-parcenary property, therefore, we would like to deliberate on the other aspect as to whether the sale can be sustained when made by one of the co-parcener in respect of entire co-parcenary property. 15. This Court in the matter of Vaman Sharma (supra) has followed the principles laid down by the Supreme Court in the case of Beereddy Dasaratharami Reddy (supra) explaining the legal necessity. Para 16 of Vaman Sharma (supra) is quoted below : 16. Now turning back to the sale which was executed, the sale deed would show that it was executed by Gulabchand in his individual capacity for the reason for his personal need to raise money. The Supreme Court in the matter of the Beereddy (Supra) has examined the position of Hindu law evaluating the legal necessity. The legal necessity has been enunciated as under : 7. Elucidating the position in Hindu law, this Court in Kehar Singh (D) through Legal Representatives v. Nachittar Kaur has referred to Mulla on Hindu Law and the concept of legal necessity to observe thus: “20. The legal necessity has been enunciated as under : 7. Elucidating the position in Hindu law, this Court in Kehar Singh (D) through Legal Representatives v. Nachittar Kaur has referred to Mulla on Hindu Law and the concept of legal necessity to observe thus: “20. Mulla in his classic work Hindu Law while dealing with the right of a father to alienate any ancestral property said in Article 254, which reads as under : “Article 254 254. Alienation by father.— A Hindu father as such has special powers of alienating co-parcenary property, which no other coparcener has. In the exercise of these powers he may: (1) make a gift of ancestral movable property to the extent mentioned in Article 223, and even of ancestral immovable property to the extent mentioned in Article 224; (2) sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and great-grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt, and was not incurred for immoral or illegal purposes (Article 294).” 21. What is legal necessity was also succinctly said by Mulla in Article 241, which reads as under: “Article 241 241. What is legal necessity.—The following have been held to be family necessitie within the meaning of Article 240: (a) payment of government revenue and of debts which are payable out of the family property; (b) maintenance of coparceners and of the members of their families; (c) marriage expenses of male coparceners, and of the daughters of coparceners; (d) performance of the necessary funeral or family ceremonies; (e) costs of necessary litigation in recovering or preserving the estate; (f) costs of defending the head of the joint family or any other member against a serious criminal charge; (g) payment of debts incurred for family business or other necessary purpose. In the case of a manager other than a father, it is not enough to show merely that the debt is a pre-existing debt; The above are not the only indices for concluding as to whether the alienation was indeed for legal necessity, nor can the enumeration of criterion for establishing legal necessity be copious or even predictable. It must therefore depend on the facts of each case. It must therefore depend on the facts of each case. When, therefore, property is sold in order to fulfil tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity.” (See Hindu Law by Mulla “22nd Edition”) xx xx xx 26. Once the factum of existence of legal necessity stood proved, then, in our view, no co-coparcener (son) has a right to challenge the sale made by the karta of his family. The plaintiff being a son was one of the co-coparceners along with his father Pritam Singh. He had no right to challenge such sale in the light of findings of legal necessity being recorded against him. It was more so when the plaintiff failed to prove by any evidence that there was no legal necessity for sale of the suit land or that the evidence adduced by the defendants to prove the factum of existence of legal necessity was either insufficient or irrelevant or no evidence at all.” 16. To evaluate the sale deed we further perused the initial sale deed dated 25-1-2017 (Ex.P/2 : Ex.D/1) to ascertain as to whether the initial sale made by the father (defendant No.4) was for legal necessity or not ? The recital of sale deed would show that the property bearing Khasra No.118/2 admeasuring 0.95 acres and property bearing khasra No.119/1 admeasuring 1.83 acres was subject of sale, which is situated at village Bareva, Tehsil Pathariya, District Mungeli for a sale consideration of Rs.2,20,000/-. A part of the sale deed wherein declaration of the seller/defendant No.4 was made is also attached. From which it is manifest that for agricultural purpose, the subject suit land was sold. Then subsequently in the sale deed also it is recorded that suit property belongs to him exclusively and he is in possession of the suit property. He further declares that for the reason of household expenses he needs money, therefore, the sale deed is executed. The purchaser Smt. Sangeeta Kashupa (Defendant No.1) was not entered into witness box and in her place her husband Ashwani Kashyap was examined as DW-4. 17. The cross-examination of the Ashwani Kashyap (DW-4) would show that while the property was purchased, he was not the power of attorney holder of his wife i.e. defendant No.1 and the entire sale transaction was carried out by the defendant No.1 Smt. Sangeeta Kashyap herself. 17. The cross-examination of the Ashwani Kashyap (DW-4) would show that while the property was purchased, he was not the power of attorney holder of his wife i.e. defendant No.1 and the entire sale transaction was carried out by the defendant No.1 Smt. Sangeeta Kashyap herself. He further accepted the suggestion that at the time of sale, the defendant No.4, the seller, stated that for his household expenses he wanted to sell the land. Therefore, the statement of Ashwani Kashyap (DW-4), who was primarily the power of attorney holder of defendant No.1, was not the primary evidence. Consequently, the proposition laid down by the Supreme Court in the matter of Janki Vashdeo Bhojwani (supra) at para 15 wherein the Supreme Court has held that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. Para 15 of the said decision is quoted below for ready reference : 15. Apart from what has been stated, this Court in the case of Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct". 18. Therefore, in view of the aforesaid facts, it would be apt to hold that the legal necessity was not proved before the Court to the effect that the sale deed executed by the defendant No.4 was for any legal necessity of the plaintiffs who were also the co-parceners. 19. Another aspect which looms large in this case is that among the plaintiffs who were three in number, the plaintiff No.3 is a minor. It is the settled proposition that the power of the Manager for an infant heir to charge an estate not his own, is, under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it. It can only be exercised rightly in a case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it. The lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. However, to avert this the vendee must prove that he acted honestly as such was not required to see the application of sale consideration. 20. In the instant case since there is no evidence on behalf of the purchaser either to show that inquiry was made by her or how the sale proceeds was applied, the said act would be eclipsed by the mandate of the provisions of the Act, 1956. Section 8 prescribes the powers of natural guardaian, which reads under : 8. Powers of natural guardian.—(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the court,— (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian, in contravention of subsection (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him. (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular— (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof; (b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court. (6) In this section “court” means the city civil court or a district court or a court empowered under section 4A of the Guardian and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate. 21. Perusal of the aforesaid Section would show that the natural guardian shall not without the previous permission of the court shall execute the sale of any part of the immovable property of the minor. Therefore, sub-section (2) of Section 8 makes it incumbent that the alienation made by the guardian may not be void but voidable at the instance of minor. Therefore, sub-section (2) of Section 8 makes it incumbent that the alienation made by the guardian may not be void but voidable at the instance of minor. In the instant case the tenor of the plaint allegation itself would show that such option exercises for seeking cancellatoin of the sale deed by the minor, therefore, in the facts and circumstances of the case the judgment of the Supreme Court rendered in the matter of Sri Narayan Bal (supra) cited by the defendants that Section 8 of the Act, 1956 cannot be read in isolation would squarely apply when the legal necessity for sale is evaluated in given facts. 22. Before parting with case, we are of the opinion that the seller i.e. defendant No.4 was also co-parcener. The Supreme Court in the matter of Ramdas v. Sitabai & Ors., AIR 2009 SC 2735 while discussing the parallel issue has held that a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. The Supreme Court further held that in Paras 15 & 16 : 15. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao Vs. M. Narasimhaswami & Ors. [ AIR 1966 SC 470 ], wherein this Court stated as follows: "Now, it is well settled that the purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co-parcener whose share he had purchased." 16. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. [ AIR 1953 SC 487 ], wherein this Court held as under:- "All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. Bhubneshwar Prasad Narain Singh & Ors. [ AIR 1953 SC 487 ], wherein this Court held as under:- "All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. (Emphasis added) 23. Therefore, the sale in excess of the property of defendant No.4 to the defendant No.1 and consequent thereto to defendants No.2 & 3 would not be binding on the plaintiffs. Accordingly, following the proposition that the purchaser would not acquire any definite share in the property and was not entitled to joint possession except to file a suit for partition, we hold that the sale deeds i.e. Ex.D/1; Ex.D/2 & Ex.D/3 cannot be sustained over and above the share of defendant No.4 Baldau Prasad Singroul. 24. As an upshot, the appeal is allowed and the impugned judgment and decree dated 21-9-2021 passed by the First Additional District Judge, Mungeli, District Mungeli, in civil suit No.23-A/2018 is set aside in terms of aforesaid observation. 25. There shall be no order as to cost(s). 26. A decree be drawn accordingly.